State v. Lindenburg

| Tex. | Jul 1, 1854

Wheeler, J.

The defendant was indicted for perjury committed in giving testimony on a trial upon an indictment for betting at a certain gaming table. The defendant moved to quash the indictment, and his motion was sustained. Of the several causes assigned in support of the motion to quash, there is but one which seems to us at all deserving of notice; that is, that in the. assignment of the perjury, instead of simply averring the negative of the oath, the indictment, in this connection, also avers the knowledge of the defendant of the matter specially averred as the converse of the oath. Thus, it is averred, that it was a material fact upon the trial that the table was exhibited for gaming; that the defendant falsely swore that it was not so exhibited, and instead of averring simply the negative of the oath, that, in truth, it was so exhibited, the averment is that the defendant “well knew” that the table was exhibited for gaming. As observed by the Attorney General, though it was not necessary in connection with the special averment negativing the oath, to aver also the defendant’s knowledge, which was elsewhere sufficiently charged, the averment in this connection did not impair the force or effect of the special averment of fact, in which it was introduced; and surely it did not vitiate the indictment.

Nor was it necessary that the defendant should have been charged with swearing falsely as to every matter of fact material to be proved upon the trial. It is; enough that he is charged with having sworn falsely to one material fact, and that the perjury as to that fact is sufficiently assigned. The indictment appears to contain every averment necessary to charge the defendant with the crime of perjury ; and we are of opinion that the Court erred in sustaining the motion to quash. The judgment is therefore reversed and the cause remanded for further proceedings.

Eeversed and remanded.